concurring in part and dissenting in part.
I concur in all but part I(C) of the majority's opinion. Initially, I acknowledge that the issue of how to treat unused sick and vacation time in a dissolution action is a very difficult one to resolve. See Lesko v. Lesko, 184 Mich.App. 395, 457 N.W.2d 695, 699 (1990) ("On the one hand, [the husband] may become ill and not retain his sick days until retirement. On the other hand, he has accumulated these sick days and vacation days during the marriage, he has a right to the use or pay for these days and they are capable of being assigned a value."), disa-greed with on other grounds by Booth v. Booth, 194 Mich.App. 284, 486 N.W.2d 116 (1992).
Nonetheless, like the trial court, I would hold that an employee's vacation and sick time accrued during the course of a marriage is a marital asset subject to division in a dissolution of marriage case.
The majority aptly notes the split of authority in other jurisdictions regarding this issue and finds persuasive those cases holding an employee's accrued interest in sick and vacation time not to be a marital asset. The majority reaches this conclusion based on "the uncertain nature of this [sick and vacation leave] benefit." The majority characterizes the benefit as having an "uncertain nature" due to (1) the possibility that husband may have to use all his accrued time in the event of a serious illness, and (2) husband's present plan to use accrued leave time for exercising parenting time with the parties' child.
I disagree that an accrued leave benefit is too speculative to be treated as a marital asset. As the majority acknowledges, in Colorado, we have recognized, as property rights subject to division in a dissolution action, analogous interests involving a right to future enjoyment but subject to divestment and even uncertain value. See, e.g., In re Marriage of Balanson, 25 P.3d 28, 40 (Colo.2001) (interest in an irrevocable trust).
Further,
[the essence of leave is that it is a benefit of employment and, whether considered a benefit in addition to salary, or somehow an aspect of salary, it has independent value. If taken during marriage, leave time devoted to vacation or to recovery from illness benefits the community. If not taken, leave that accumulates will be available to benefit the community in the future. If the community ends, the accumulated leave attaches to the employee. Unless some equitable distribution is made or the asset is divided upon dissolution of marriage, the employee takes the full community asset and benefit,. We see no policy reason or persuasive rationale why the employee, Husband in the case before us, should end up with the full value of the community asset or why the leave assets should not be divided.
Arnold v. Arnold, 134 N.M. 381, 77 P.3d 285, 290 (Ct.App.2003).
Finally, the nature of an accrued leave benefit is not too speculative to be valued. An accrued leave benefit may rationally be valued based on the employee's present salary; the possibility that its value could increase or decrease after it is awarded is of no moment. See In re Marriage of Abrell, 236 Ill.2d 249, 337 Ill.Dec. 940, 923 N.E.2d 791, 805 (2010) (Garman, J., dissenting).
For these reasons, I perceive no error in the trial court's treatment of husband's accrued leave time as marital property.